Citation Nr: 1752832	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  14-39 807	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an effective date prior to March 15, 2010, for a 20 percent evaluation for bilateral hearing loss, to include as due to clear and unmistakable error (CUE) in a November 1989 rating decision.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

E. Kunju, Associate Counsel
INTRODUCTION

The Veteran served on active duty from November 1961 to November 1988. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

In November 2016, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file.  

In March 2017, the Board remanded this claim for additional development. It has since been returned to for further appellate consideration.

This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). LCM contains VA treatment records and documents that are duplicative of those in VBMS or are irrelevant to the issues on appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

Although the Board regrets further delay, remand is required to obtain compliance with a prior Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The Board is obligated by law to ensure that the RO complies with its directives. Stegall, 11 Vet. App. at 271. RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271.

In the March 2017 Board remand, the Board directed the RO to provide appropriate notice to the Veteran regarding the theory of entitlement to an earlier effective date based on CUE in a 1989 rating decision. Although the RO provided the Veteran with a notice letter in April 2017, the RO did not address the requirements of CUE - which is a specific theory of entitlement to an earlier effective date. Furthermore, although the RO readjudicated the claim, the August 2017 supplemental statement of the case (SSOC) did not contain laws and regulations relevant to the Veteran's claim regarding CUE. Therefore notice remains inadequate and the claim must be remanded.    

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Provide appropriate notice to the Veteran regarding the theory of entitlement to an earlier effective date based on CUE in a 1989 rating decision. 

2. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 

3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).